Independent judicial inquiry into torture allegations even more vital

12 January 2012

The Crown Prosecution Service today announced that for the time being no one from the security or intelligence services will be charged over British complicity in torture. However, the CPS clearly vindicated concerns that British security agencies provided questions for Binyam Mohammed’s interrogation in Morocco between 2002 and 2004.

The CPS has also decided that suspicions about Britain’s involvement in rendition to and torture in Libya are serious enough to warrant an immediate criminal investigation. In addition, there may be further criminal investigations into other aspects of the rendition scandal.

Liberty first expressed concerns in November 2005 that the UK government may be complicit in alleged torture practices if secret “torture flights,” carrying suspects to third countries where they may face torture transited UK airports. The human rights organisation has always insisted that an inquiry into the allegations must be fair, independent and its findings presented openly and transparently.

When the Evidence Protocol for the ‘detainee inquiry’ was finally published in July 2011 – a year after the inquiry was announced – it was clear that the crucial final word on whether material could be made public rests not with a Judge but with the Cabinet Secretary, the Government’s chief civil servant. A covering letter received by Liberty also makes clear that the Government proposes that torture victims should not be able to put questions to those allegedly complicit in their abuse - even by way of their legal representatives. In light of this all the non-governmental organisations involved – including Liberty – and the torture victims withdrew their participation from the process.

Shami Chakrabarti, Director of Liberty, said:

“We of course welcome the criminal investigation into Britain’s suspected involvement with torture under the Gaddafi regime. But the criminal law is not the only way of correcting grave injustices in a great democracy. It is now even more important that the victims, security agencies and wider public benefit from a full and independent judicial inquiry into one of the worst scandals of recent memory.

The secretive and toothless Cabinet Office process chaired by Sir Peter Gibson is an embarrassingly inadequate response and the Government’s new Green Paper would shut down open justice forever.”

The Government’s Justice and Security Green Paper, published last October, proposes that ministers should be able to initiate closed proceedings in civil claims where the Government claims disclosure would harm the public interest. It would therefore allow the Government to defend accusations of complicity in torture without revealing information which may be crucial to a fair hearing for the victim and to the public interest in media scrutiny of alleged abuses of power.

3. Section 134 of the Criminal Justice Act 1988 makes torture an offence anywhere in the world. The offence may either be committed by a public official or someone acting in an official capacity, or by someone else acting at the instigation of or with the consent or acquiescence of a public official or someone acting in an official capacity. It follows that aiding, abetting, counselling or procuring torture anywhere in the world or conspiring to do so are also offences under British law.

4. Timeline of Torture allegations:

The Guardian newspaper revealed on 6 December and 12 September 2005 that airports in Biggin Hill, Birmingham, Bournemouth, Brize Norton, Farnborough, Gatwick, Heathrow, Luton, RAF Mildenhall, Northolt, and Stansted have allowed CIA or CIA-chartered jets to land temporarily. These aircraft had flown into the UK approximately 210 times since 2001.

Liberty alerted the then-Foreign Secretary Jack Straw in November 2005 of its fears that the UK is in breach of domestic and international law by allowing CIA “extraordinary rendition” flights to land and re-fuel in Britain. A dossier of Liberty’s ongoing correspondence with the Foreign and Commonwealth Office is available on www.liberty-human-rights.org.uk

On 30 November 2005, Liberty called on the Police Chief Constables of Bedfordshire, Dorset, Essex, Hampshire, the Metropolitan Police, the Ministry of Defence Police, Suffolk, Sussex, Thames Valley, and West Midlands to conduct an investigation into whether the airports in their regions were being used to transport suspects to countries known to practice torture. In response to Liberty’s request to the police, Greater Manchester Police Chief Constable Michael Todd confirmed on 19 December 2005 that he would look into “extraordinary rendition” flights on behalf of the Association of Chief Police Officers (ACPO.)

On 26 May 2006, the Parliamentary Joint Committee on Human Rights concluded that the Government was not doing enough to investigate whether UK airports are being used by secret CIA flights involved in the practice of extraordinary rendition.

On 7 June 2006 the Council of Europe released preliminary findings concluding that CIA flights carrying terror suspects likely to face torture have been given access to UK airspace and airports.

On 26 June 2006 the Parliamentary Assembly of the Council of Europe (PACE) passed a resolution calling on all member states, including the UK, to pressure the US into ending rendition flights, closing secret prisons and changing their own laws and practices to guarantee the rights of persons captured from, detained in or transported through their states.

In February 2007 the European Parliament’s temporary commission on extraordinary rendition approved a report accusing EU states of complicity with CIA rendition flights.

In May 2008, in order to assist his defence against terrorism charges in the US, Binyam Mohamed made an application to the High Court requesting the UK government to disclose documents provided to it by the US government which gave details of his treatment by the US authorities. Mr Mohamed alleged that he had been subjected to torture while in US custody, consisting of genital mutilation, deprivation of sleep and food, being held in stress positions for days at a time, and being forced to listen to loud music and screams of other prisoners while locked in a pitch black cell, all while being forced to implicate himself and others in terrorist plots against the US.

The High Court ruled that Mr Mohamed was entitled to the documents because they concerned wrongdoing by a third party in which the UK government had been involved. Binyam Mohamed's treatment occurred at a time when the UK intelligence services had been involved in questioning him. The UK government then issued "public interest immunity" (PII) certificates claiming that disclosure of the documents, and seven paragraphs of the High Court's judgment which summarised them, would not be in the public interest. Mr Mohamed challenged this assessment and the matter was considered by the High Court.

Binyam Mohamed subsequently obtained the documents from the US authorities and charges against him in the US were ultimately dropped. However the UK government continued to resist publication of the 7 paragraphs of the High Court's judgment because it claimed that it would breach the diplomatic rule that intelligence provided by one government to another should not be disclosed without the consent of the government which provided it ("the control principle"). It was said that the consequence of this was that the Bush administration would reduce its co-operation with the UK intelligence services.

The High Court accepted the UK government's concerns and decided not to publish the seven paragraphs.

Subsequently the High Court agreed to reopen the case after it materialised that the Obama administration may not adopt the same stance as the Bush administration had done. The Court ruled that there was no proper basis for the UK government's assertion that the US government would react in the way that was claimed. It therefore ruled that the seven paragraphs should be published. The UK government appealed this decision and as a result the publication of the seven paragraphs was postponed pending the appeal.

Meanwhile a US court ruled in an application for habeas corpus by a Guantanamo Bay detainee that Binyam Mohamed had been treated in the way he alleged (i.e. as summarised in the seven paragraphs). Despite this the UK government continued to argue that the seven paragraphs should not be published. The Court of Appeal decided on 10 February 2010 that the seven paragraphs should be published.

On receiving the embargoed draft judgment of the Court of Appeal, the government’s counsel made the unusual request in a letter to the Master of the Rolls to delete one paragraph of his judgment. On 26 February 2010 after receiving further submissions on the issue, the Master of the Rolls rejected the government’s request and published the disputed paragraph with only minor alterations.

In separate litigation, Binyam Mohamed and a number of other former Guantanamo Bay detainees brought civil claims for damages against the UK government for involvement in their ill treatment and unlawful detention by the US authorities. The government asked the High Court to adopt a “closed material procedure” which would involve the claimants and their lawyers being excluded from the hearing of the case, and the issuing of a “closed judgment” which they would not be entitled to see.

On 18 November 2009 the High Court ruled that it had the power to adopt such a procedure. The claimants appealed that ruling.

On 4 May 2010 the Court of Appeal ruled that Court would not adopt the ‘secret procedure’.

On 6 July 2010 The Prime Minister announced an inquiry, to be chaired by Sir Peter Gibson, into allegations of British complicity in torture. A former senior judge, Sir Peter Gibson’s also has a continuing role as Intelligence Services Commissioner which he has held since 2006 (not due to end until 2012).

On 16 November 2010 the Government announced the settlement of civil claims by former Guantanamo detainees.

24 – 27 January 2011, the Supreme Court heard the Government’s appeal against the Court of Appeal ruling on closed hearings.

In July 2011, the Supreme Court upheld the Court of Appeal ruling on closed hearings. Lord Dyson, giving the lead judgment, said that the introduction of a closed material procedure in ordinary civil claims would involve “an inroad into a fundamental common law right”.